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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Dargan, Application for Reconsideration [2022] PBRA 18 (07 February 2022)
URL: http://www.bailii.org/ew/cases/PBRA/2022/18.html
Cite as: [2022] PBRA 18

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[2022] PBRA 18

 

 

 

Application for Reconsideration by Dargan

Application

 

1.   This is an application by Dargan (the Applicant) for reconsideration of a decision of an oral hearing dated the 5 January 2022 not to direct release or to recommend progression to open conditions.

 

2.   Rule 28(1) of the Parole Board Rules 2019 provides that applications for reconsideration may be made in eligible cases either on the basis (a) that the decision is irrational and/or (b) that it is procedurally unfair.

 

3.   I have considered the application on the papers. These are the dossier consisting of 418 pages (including the decision letter) and the legal representations dated the 20 January 2022.

 

Background

 

4.       On the 1 October 2009, the Applicant was sentenced to an indeterminate sentence of imprisonment for public protection with a minimum tariff of 5 years, less time spent on remand, for an offence of conspiracy to rob. The minimum tariff expired on the 3 March 2014.

 

5.   The offence was committed on the 5 September 2008 when the Applicant was aged 23. It was meticulously planned. He and three others, all wearing masks, used a sledgehammer to smash the window of a bank where two female employees were filling an ATM. They were threatened with a crowbar and were terrified. The team got away with £426,000 pounds, none of which has been recovered. Three cars were stolen and used as part of the enterprise.

 

6.   The Applicant is now aged 36.

 

 

Request for Reconsideration

 

7.   The application for reconsideration is dated the 20 January 2022.

 

8.   The grounds for seeking a reconsideration are based on procedural unfairness and irrationality and are as follows:

 

Procedural unfairness.

 

9.   The panel relied on a report from Prison A, which had been filed late and which the professional witnesses had not seen.

 

 

Irrationality.

 

10.The panel erred in deciding not to place weight on the evidence of the professional witnesses because their recommendations had been influenced by the psychological risk assessment.

 

11.The panel erred when it placed weight on security information which consisted of unproven allegations.

 

 

12.I asked to hear part of the recording of the hearing in order to ascertain what representations had been made in respect of the report from Prison A.

 

 

Current parole review

 

13.The Secretary of State referred the case to the Parole Board on the 14 October 2020, requiring it to consider the possibility of release or alternatively progression to open conditions.

 

14.On the 17 February 2021, the panel deferred the oral hearing for a psychological risk assessment to be undertaken. On the 18 November 2021, the case was listed for an oral hearing on the 15 December 2021.

 

15.On the 15 December 2021, the panel, consisting of a psychologist and two independent members, heard evidence from the Prison Offender Manager, a Forensic Psychologist in training, the Applicant, the Community Offender Manager and a Prison Security Analyst. The Applicant was legally represented.

 

The Relevant Law

 

16.The panel correctly sets out in its decision letter dated 5 January 2022 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions.

 

Parole Board Rules 2019

 

17.Under Rule 28(1) of the Parole Board Rules 2019 the only kind of decision which is eligible for reconsideration is a decision that the prisoner is or is not suitable for release on licence. Such a decision is eligible for reconsideration whether it is made by a paper panel (Rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (Rule 25(1)) or by an oral hearing panel which makes the decision on the papers (Rule 21(7)).

 

18.A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under Rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6.

 

Irrationality

 

19.In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said at para. 116,

 

“the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

 

20.This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374. The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing ‘irrationality’. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.

 

21.The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston [2019] PBRA 1 and others.

 

Procedural unfairness

 

22.Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision.

 

23.In summary an Applicant seeking to complain of procedural unfairness under Rule 28 must satisfy me that either:

 

(a)        Express procedures laid down by law were not followed in the making of the relevant decision;

(b)        They were not given a fair hearing;

(c)        They were not properly informed of the case against them;

(d)        They were prevented from putting their case properly; and/or

(e)        The panel was not impartial.

 

24.The overriding objective is to ensure that the Applicant’s case was dealt with justly.

 

Other

 

25.The legal representations refer to the by now well-known authority of Pearce, R (On the Application Of) v Parole Board of England and Wales [2020] EWHC 3437 (Admin) which considers the Board's Guidance on Allegations published by the Board on 11 April 2019.  The relevant part of the Guide states,

 

“Panels may need to make an assessment of an allegation when the allegation is capable of being relevant to the parole review, but the panel is not in a position to make a finding of fact either because there is insufficient material available to make such a finding on the balance of probabilities, or because it would not be fair to do so. This most often arises when there is information regarding an allegation, but, critically important aspects of the evidence cannot fairly be tested. The allegation and the circumstances around it can form a basis for testing the reliability of the prisoner's evidence. It can be material on which an expert's evidence can be tested. The wider circumstances of the allegation might also give rise to areas of concern.

To make an assessment of concerns arising from an allegation, panels will need to decide:

a. What, if any, relevance the allegation has to the parole review; and

b. The weight to attach to the concerns arising from the allegation;

 

and then form a judgement as to the relevance and weight, if any, to be attached to these concerns, and the impact this has on the panel's overall judgement.”

 

Jurisdiction

 

26.The decision of the Parole Board at an oral hearing as to whether or not to direct release of the prisoner is one that is eligible for reconsideration under rule 28 (1). This is the combined effect of rules 25(1), 28(1) and 28(2).

 

27.However, rule 25 (4) and rule 25 (5) state,

 

“(4) Where a panel receives a request for advice from the Secretary of State concerning whether a prisoner should move to open conditions, the panel must recommend either that the prisoner is suitable for a move to open conditions, or the prisoner is not suitable for a move to open conditions.

 

(5) Where the board receives a request for advice with respect of any matter referred to it by the Secretary of State, any recommendation made in respect of that request is final.”

 

The reply on behalf of the Secretary of State/the prisoner

 

28.The Secretary of State has not chosen to make any representations in respect of this application.

 

Discussion

 

 

29.The panel made two decisions: firstly, a decision not to direct release on licence and secondly, a decision not to recommend a move to open conditions.

 

30.At the beginning of the hearing, learned counsel unusually but helpfully asked the Applicant to explain to the panel why he was not seeking a direction for release but only a recommendation to move to open conditions. The entire case was conducted on the basis that the application was restricted to seeking a recommendation and there is no suggestion in this application that the panel's first decision was irrational, brought about by procedural unfairness nor is there any attempt to seek to challenge that decision.

 

31.As indicated above, the decision not to recommend a move to open conditions is not eligible for reconsideration under the rules.

 

32.That would be sufficient to mean that this application must be refused; however, in any event the tests for procedural fairness and rationality are not met.

 

33.Dealing first with the allegation of procedural impropriety, although not cited in the legal representations, the decision in R (Weszka) v Parole Board [2012] EWHC 827 (Admin), held that an oral hearing had been unfair because the Applicant should have been allowed an adjournment to consider the late admission of police intelligence, alleging his involvement in serious crime, as well as to consider its weight and veracity. No application for an adjournment had been made by the legal executive representing the Applicant.

 

34.The facts were somewhat removed from those of the instant case. In practical terms, the Applicant and his lawyers had no notice at all of the evidence and no realistic opportunity to address it. No one had any way of knowing how the evidence had come forward nor from where it had emanated. It could have been first, second or even third hand hearsay. Among other matters, it affected how the panel regarded the Applicant's credibility. An adjournment was necessary for procedural fairness not simply for the lawyers to consider the weight and veracity of the evidence but whether the evidence should have been admitted at all.

 

35.The legal representations do not suggest that any witness indicated they were having difficulty dealing with the questions because of the late service of the psychological report. I have not listened to the entire tape, but I have listened to the opening, those parts of the evidence of the individual witnesses which I believe deal with the late report and the closing submissions of learned counsel. I could find no evidence of a witness in any sort of difficulty in dealing with the topic that might have been ameliorated by an adjournment.

 

36.There was no application for an adjournment or for the case to be put back and indeed as far as I could make out, no reference to any difficulties caused by the late service of the Prison A report. The succinct and very clear closing submissions by learned counsel did not deal with the problem at all.

 

37.The panel plainly considered the way the case was progressing was procedurally correct and there was nothing that I can see that would have alerted the panel to the possibility of any unfairness in the approach they were taking.

 

38.If a witness had said they needed an adjournment or indicated in some other way that they were in difficulty dealing with the case and that difficulty could be remedied by additional time or if there had been an application from learned counsel for an adjournment or additional time, the position might have been different.

 

39.I am satisfied the procedure adopted by the panel was fair.

 

40.Turning to the second ground, it is not completely easy to understand the first argument in support of the claim of irrationality. It is perfectly correct that the panel had formed the impression that the Community Offender Manager (who had never met the Applicant) had been influenced in her recommendation by the psychological risk assessment. The way this ground is pleaded seems to me to suggest the panel thought it wrong in principle for a professional witness to be influenced by a psychological assessment.

 

41. I do not read the decision letter in that way. As I read it, the panel in part did not accept the recommendation of the Community Offender Manager because it had been influenced by the psychological assessment and, all importantly, the panel had not accepted the evidence of the psychologist.

 

42.In other words, part of the basis for the recommendation had been a psychological opinion that had not been accepted by the panel (which had included a psychologist member). The panel were perfectly entitled to approach the Community Offender Manager's evidence in that way.

 

43.Dealing with the second ground, it may be helpful to remember the Applicant’s record of custodial behaviour.

 

(a) In June 2018, he transferred to the therapeutic community at Prison A. He attracted 17 intelligence reports relating to suspected involvement in drug supply, associations, distracting staff and manipulating staff. He was deselected in November 2018.

 

(b) He was at Prison B from November 2018 until July 2019 when he was moved to Prison C. There were 11 intelligence reports, the majority of which consisted of suspicions of being involved in the supply of drugs.

 

(c) In January 2020, he was transferred to Prison D for security reasons.

 

(d) In March 2020, he transferred to the Progression Regime at Prison E; in October 2020, he was deselected and subjected to a security move to the present prison, Prison F. At Prison F, he has earned more privileges through good custodial conduct scheme. There have been however 8 intelligence reports, mainly relating to drugs, associations, mobile telephones and violence against another prisoner.

 

44.The Applicant blamed the adjudications on one prisoner acting maliciously and simply being observed to be with certain associates. The Applicant denied most of the allegations.

 

45.It is well established that hearsay evidence is permissible at parole hearings, even in cases where the hearsay evidence is contested and contradicted by oral evidence. The question will normally be one of weight to be given to the evidence rather than its admissibility.

 

46.The panel considered there had been 6 prisons and intelligence had been received at most of those institutions. The intelligence in each prison was similar. The panel considered the broad picture and held it would be unrealistic to dismiss the entirety as fabrications and concluded that the Applicant were most likely involved in at least some of the alleged activities at each prison.

 

47.This approach is not only permissible; it is the approach usually taken by panels faced with considerable evidence of similar misbehaviour at different institutions and therefore unlikely to be contaminated.

 

 

Decision

 

48.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused.

 

 

 

 

 

James Orrell

07 February 2022

 

 

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